UK: The shake-up in UK immigration control, by Frances Webber
01 October 2008
With a budget of over £2 million and more than 25,000 staff, the new UK Borders Agency will have a host of powers to enforce yet more draconian immigration legislation
Immigration has been one of the most frequently legislated issues over the past two decades, and the speed of new legislation, rules and guidance has increased exponentially in the past five years. Now, the department of the Home Office dealing with immigration has reinvented itself into what it calls a ‘shadow agency’ with a vastly wider remit; two major pieces of legislation are planned for the 2008-9 parliamentary session; and at the same time the (non-statutory) criteria and procedures for immigration for work or study are undergoing massive change. The main changes are set out here.
Structural changes: from IND to UKBA
The Immigration and Nationality Department (IND) of the Home Office was famously castigated as being ‘unfit for purpose’ by John Reid in May 2006, early in his short tenure as Home Secretary. In April 2007 Reid created the Borders and Immigration Agency (BIA) and appointed six regional directors, giving more autonomy to regional immigration policing. The BIA morphed into the UK Borders Agency (UKBA) a year later, taking on responsibility for issuing visas abroad (formerly a Foreign Office responsibility) and customs functions from HM Customs and Excise. In a speech to staff at the launch of the agency on 3 April 2008[1] then immigration minister Liam Byrne described UKBA’s purpose as to:
protect our borders and our national interests. That means we will tackle border tax fraud, smuggling and immigration crime and facilitate the legitimate movement of people and goods. That means we will stop things like firearms, drugs and paedophile material from entering our country
a description which played down UKBA’s overwhelming emphasis on immigration, and the disturbing way its website appears to equate undocumented migrants with dangerous drugs or weapons.
The sheer size and global reach of the Agency is unprecedented with, as Byrne remarked:
a span that stretches from local communities up and down the UK, to 13,000 staff deployed at our borders to nearly 3,000 officials in 135 countries around the world. The new agency will marshal resources of over £2 billion. It will deploy over 25,000 staff. It will employ over 9,000 warranted officers. That makes the agency the second largest body of warranted officers in the country.
Never has there been such unrelenting emphasis on ‘illegals’, preventing the unauthorised and undocumented from getting into the country, and getting rid of them if they manage to sneak in. To that end, the UKBA already presides over biometric visa controls abroad to ensure that the person who travels is the person to whom the visa was granted, and biometric ID cards in the UK, which are set to become entitlement cards for access to basic services (to which the Parliamentary Joint Committee on Human Rights has objected.[2] The borders agency got into trouble with the Information Commissioner in March 2008 with its plan to fingerprint all passengers entering the transit lounge at Heathrow’s Terminal 5, where domestic and international passengers mingled, to ensure transit passengers did not switch identity to enable them to sneak onto domestic flights.[3] The e-borders pilot programme screens all passengers before they travel to the UK against immigration, customs and police watch-lists, and had prevented the travel of 3,000 passengers in the three months to July 2008.[4]
In order to protect our borders with the requisite efficiency, UKBA staff are to have unprecedented powers. In Liam Byrne’s words:
no other agency in the country is as powerful as the UK Border Agency in the pursuit of th[is] purpose … [Officials will have] powers to board and search vehicles or planes or trains to search for people or goods, the power to stop and question, the power to search, the power to seize things that we believe should not be moving into our country, the power to detain an individual. Where needed our front-line staff will have designated powers under the Terrorism Act to support the fight against terrorism.
Stop and search powers, to examine anyone to establish their nationality and entitlement to be in the UK, are set to extend beyond the ports to anywhere in the UK, in draft legislation published in July 2008, and expected to be inserted into legislation later in the parliamentary session. Meanwhile, the Borders, Citizenship and Immigration Bill, which received its first reading in the House of Lords on 15 January, puts the UKBA’s new customs functions on a statutory footing and codifies its powers. It envisages pooling of information for customs, immigration and asylum, national security and policing purposes, giving officials access to a vast range of information and increasing the scope for abuse. But there is no significant strengthening of mechanisms of accountability. PACE Codes of Practice will only apply to the Border Agency to the extent that the Secretary of State directs, the BA Inspectorate monitors only for ‘efficiency and effectiveness’, and the IPCC, which was given statutory responsibility for dealing with complaints about the conduct of immigration officials, can only deal with the most serious (e.g. involving death or serious injury) - and its website gives no hint of this jurisdiction. That leaves a mass of immigration policing, much of it carried out by private security companies, which lacks any external accountability mechanism.
The legislation
The draft (partial) Immigration and Citizenship Bill, published on the UKBA website in July 2008, was intended to be the first stage in the consolidation and simplification of immigration law, replacing the 1971 Immigration Act - the cornerstone of immigration control - which had been amended and added to haphazardly by at least ten Acts over the years. The draft sought to bring together in one place all the ‘primary’ immigration control provisions - on who needs permission to enter and stay in the UK, who is authorised to perform immigration control functions, and the procedures, powers and regulation of admission, examination, detention and expulsion - together with the regulation of immigration appeals, the codification of immigration offences, carriers’ liability, employers’ liability and criteria for naturalisation as a British citizen. And it was only a partial draft. Sensibly, the government has since decided to break up this monster into (at least) two pieces of primary legislation.
The long and winding road to naturalisation
The Borders, Citizenship and Immigration Bill covers ‘earned citizenship’, in addition to adding customs functions and powers to the UKBA (referred to above). We were promised new, simplified and fairer criteria for naturalisation to replace those in the 1981 British Nationality Act. The provisions on naturalisation in the Bill are an improvement on the very complicated draft, but are still fairly complicated, involving different qualifying periods for naturalisation depending on whether the candidate has complied with an ‘activity condition’, which means unpaid community work of some sort which will be ‘prescribed’ by regulations. The basic qualifying period under the Bill is increased from five to eight years (from three to six years for spouses and family members), but can be reduced by two years if the unpaid work has been performed. Someone who came in as a worker but has been made redundant will not be eligible for citizenship under these provisions, and nor will someone whose family relationship with a British citizen, relied on for residence, has ended.
The rationale of these provisions is encapsulated in the mantra ‘earned citizenship’, which is part of the government’s drive towards the cultural assimilation of foreigners who wish to settle in the UK. The press releases and public comments on this subject give the misleading impression that the current provisions give automatic naturalisation to anyone who has lived in the country for five years. In fact naturalisation has never been automatic - there have always been language competence and good character requirements, and these were enhanced and expanded to include ‘life in the UK’ tests under the 2002 Nationality, Immigration and Asylum Act. The complexity of the new provisions is not helped by the introduction of the concept of ‘probationary citizenship leave’, which is not defined in the Bill. Unless there is substantial redrafting, the naturalisation provisions in the Borders, Immigration and Citizenship (BIC) Bill are set to make the path to naturalisation longer and considerably more complicated than it is now, to no useful purpose.
The only welcome provisions of the draft BIC Bill are the new statutory duty to have regard to the need to safeguard and promote the welfare of children in the pursuit of immigration or customs functions - a result of the withdrawal of the immigration reservation to the UN Convention on the Rights of the Child - and provisions to redress historical sex discrimination which prevented British mothers from passing citizenship to their children.
Simplification?
The other piece of proposed legislation on the table for 2008-9 is the Immigration Simplification Bill, not mentioned in the Queen’s Speech but since flagged up as a draft Bill for the current session. The Simplification Bill is not published at the time of writing, but its stated purpose is to replace the ten pieces of immigration legislation since 1971 with a single simplified Act, and to ensure ‘sharper and more consistent’ immigration rules which can be more easily adjusted to changing circumstances.
We have been given a glimpse of what the government means by ‘simplification’ in the naturalisation proposals, above. Another clue is the way the immigration rules relating to visitors have been changed. In the past, a visitor was just that - someone who might be coming to the UK as a tourist, to visit family, to transact business, to undertake a short course or even to run in the marathon - all would be eligible for visitor visas, provided they did not intend to remain beyond six months. Recent changes now mean that prospective visitors must apply for a visa as a general visitor, a child visitor, a student visitor, a business visitor, a sports visitor, or an entertainer visitor. If this is simplification, it is solely for the benefit of UKBA staff, who are steadily being de-skilled.
The July 2008 proposals
Under the heading of ‘simplification’, the 2008 partial draft proposed to remove the right of abode of long-resident Commonwealth citizens, who are currently treated as if they were British. All who are not British or EEA nationals would need ‘immigration permission’. The unitary concept of ‘immigration permission’ (IP) would also replace entry clearance. IP could be granted before, on and after entry. ‘Indefinite leave to remain’ under the 1971 Act would become ‘permanent immigration permission’; limited leave ‘temporary immigration permission’. Permission granted for protection reasons (on an application for refugee status or humanitarian protection) would be ‘protection permission’. Groups previously exempt from control such as seafarers and diplomats would need IP. Some of these proposals, such as withdrawal of the right of abode and diplomatic exemption, are unlikely to have survived the consultation process in the autumn of 2008 - but they give an alarming indication of Home Office thinking.
The July 2008 draft proposed a merger of the separate processes of deportation (for criminal offences or conduct conducive to the public good) and administrative removal (following refusal of entry or cancellation of leave, for illegal entry, breach of conditions, overstaying and other immigration irregularities) into one process of expulsion. An expulsion order (EO) could be made in all these situations, and would be mandatory (subject to statutory exceptions) against ‘foreign criminals’, ie non-EEA nationals committing offences for which they are sentenced to 12 months or more, or specified offences. An expulsion order could also be made against someone outside the country, replacing current exclusion orders. In all cases expulsion would entail an automatic bar on re-entry, either for a limited or an unlimited period. This means that someone who has breached a condition of permission, e.g. by failing to notify the UKBA of a change of address, or as a student taking a part-time job for 22 hours per week instead of 20, could be expelled and banned from re-entry in exactly the same way as a murderer or rapist. In addition, the draft would make it a criminal offence to try to re-enter following the making of such an order.
Proposed new powers for immigration officers to stop people in the street and demand to see proof of entitlement to be here have already been referred to. Other objectionable features of the July 2008 proposals include new powers for immigration officers to examine passengers leaving the country to ascertain whether they have committed any immigration offences in the UK, and if so, to stop them coming back. There are no plans to place a statutory limitation on the length of immigration detention - not even for children, despite the December 2008 Code of Practice on keeping children safe from harm, and the proposed new statutory duty to have regard to children’s welfare when exercising immigration functions.
Under cover of ‘simplification’ and consolidation of the law, the government’s proposals represent a massive accretion of power for the executive, and further micro-management of immigration which would in fact represent an abdication of justice, by on the one hand an over-prescriptive regulation (as has happened in the denomination of different types of visitor), and on the other, a failure to distinguish cases which ought to be distinguished (as in powers of expulsion). The draft represents the government’s thinking before the consultation process, and changes are fervently hoped for in the final simplification proposals.
Emphasis on enforcement
The other major change is the replacement of the work permit system by what the government always calls an ‘Australian-style’ points system, whereby non-EEA economic migrants must achieve a certain number of points (awarded for attributes such as income level, academic qualifications and youth) in order to qualify for entry (unless they work in a ‘shortage occupation’, as defined in the lists published following recommendations by the Migration Advisory Committee).
Behind this change, however, are more radical changes in the policing of economic migrants. Employers wishing to employ non-EEA nationals have to obtain a sponsorship licence, which will be withdrawn if employers fail to comply with ongoing immigration control obligations. Not only do they have to check new recruits’ entitlement to work in the UK (on pain of fines which have been increased to up to £10,000 per worker), but they also have to report employees who leave the job or are absent from work for a period. The same obligations are imposed on colleges and universities wishing to take foreign students. No wonder only a fraction of employers who previously sought work permits have signed up for sponsorship licences. The obvious and immediate effect of these changes, which came into effect in November 2008, is that employers will close their doors to anyone who looks or sounds foreign, including refugees and other long-term migrants who speak with a foreign accent, for fear of trouble with the Borders Agency. Indeed, the mantra ‘British jobs for British workers’ uttered by senior politicians including the prime minister positively encourages such conduct.
References
1. www.press.homeoffice.gov.uk/Speeches/speech-lb-uk-border-agency
2. JCHR, Fourteenth Report for the Session 2007-08 Data Protection and Human Rights, 14 March 2008 HL 72/HC 132).
3. Home Office to order fingerprinting of air passengers, www.theregister.co.uk/2008/07/28/ukba_airport_fingerprints
4. “Results of Britain’s first global visa review”, 10 Juiy 2008, www.statewatch.org/news/2008/jul/uk-visas-tests.pdf